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Home > 2022 > What’s behind the sweeping powers to the ED by the apex court? | Faraz (...)

Mainstream, VOL LX No 33, 34 New Delhi, August 6, August 13, 2022 [Independence Day Double Issuel]

What’s behind the sweeping powers to the ED by the apex court? | Faraz Ahmad

Saturday 13 August 2022, by Faraz Ahmad

Jo baat kehte darte hain sab, too wo baat likh
Itni andheri thhee na kabhi pehle raat, likh —Javed Akhtar
(Write what everyone is scared of saying;
write that the night was never so dark as now)

Once again the courts in India have exposed themselves to the charge of aiding the executive’s partisan role in targeting political and other opponents of this government, suppressing dissidence through patently unfair, arbitrary means, misusing various investigative agencies of the Central government.

The other day, Chief Justice N V Ramanna raised the issue of media trial and kangaroo courts and Justice D.Y Chandrachud too asked the media not to raise questions about judges all the time because it lowers their morale. But when the court goes so far as to upturn its own former judgement to aid the Government’s arbitrary act, won’t keeping quiet amount to betraying the cause of truth and implicitly participating in throttling democracy? I believe it would.

Upholding the draconian clauses of the Prevention of Money Laundering Act (PMLA) which grant sweeping powers to the Enforcement Directorate, a visible tool in the hands of this Government to wilfully and deliberately amputate the Opposition in the run up to the 2024 general elections, does it not raise question about the court’s orders? More so when the judgement acknowledges that the source of these unbridled powers of the Enforcement Directorate (ED) emanates from the 45th amendment to PMLA made by this Government restoring the stringent or rather impossible bail conditions, struck down by the same Supreme Court in 2017, through a Money Bill whose legality challenged, and still under review of a seven-judge bench of the same court. The bench of Justice Khanwilkar, who retired July 29, and delivered this controversial judgement just two days earlier, conceded that if the Court strikes down the Money Bill route of this law, this court order will stand nullified. And yet his bench upheld the draconian powers of the ED to arrest and jail a person, confiscate his properties, without assigning any reason, agreeing with the Government that the ED officials are not police officers and therefore are not constrained by the legal restrictions placed on police officers to assign a reason for the arrest. Instead ED officers have full liberty to force a statement under duress from the accused which becomes admissible evidence against the said accused. In effect making bail of an accused facing financial allegations impossible, equating it with terror activity. This judgement goes so far as to pronounce that ED officers are not police officers and so are not constrained by policing code either. The ED officer need not register a First Information Report (FIR) or assign a reason or disclose the content of his so-called probe but arrest and jail him at will Such sweeping powers no law enforcing agency could ever imagine to exercise. But Justice Khanwilkar has granted it to the ED, two days before retiring. Ironically this comes when we are ordained to celebrate Azadi ka Amrit Mahotsav on the 75th year of our independence, while students, social activists and political opponents are either languishing in jails or facing the ED Damocles’ sword over their heads.

Notwithstanding the active assistance the Election Commission of India (ECI) provides the BJP in successive elections, through various means, including hacking and programming the Electronic Voting Machines (EVM) to cast the vote for BJP whichever button you press as demonstrated to the local Deputy Commissioner in one of videos gone viral, or simply replacing the machines safely deposited in the strong room after polling by another pre-programmed machine, as was reported from several districts of UP, it is evident that the BJP is not satisfied with the fact that the so-called Opposition against it is divided and demoralised. Perhaps it fears what happened in UP earlier this year when desperate youth poured on to the streets to attend Samajwadi Party leader Akhilesh Yadav and Rashtriya Lok Dal (RLD) leader Chaudhry Jayant Singh, or in Bengal where Mamata Banerjee had enough muscle to take on and defeat the Sangh money and muscle power. Therefore the BJP perhaps feels the necessity of further paralysing and demoralising the Opposition parties and its leaders, to be left with no cash but only ED summons every other day.

During the UPA government the Supreme Court of India had described the Central Bureau of Investigations (CBI) a “caged parrot” only because the then Director responded to a summon by the Law Minister of the day. But when the Modi government sacked a Director of the CBI at the dead of night at 2 am, trying to probe corruption allegations of a favourite of this government, the Supreme Court failed to come to the rescue of the Director who acted fearlessly of this Government. It is now crystal clear that the Enforcement Directorate (ED) is not merely a caged parrot but a pet hawk perched dangerously on the iron gloves of this government to attack political opponents or any dissidents whom the Boss dislikes or simply considers him or her an eyesore.

And Justice Khanwilkar led bench has turned the ED into Lord Rama’s Ashwamedh, who could roam freely and capture any territory and none dare challenge its presence or action. The stage is now set by this BJP government to pauperise the entire opposition in the run up to the impending elections. This for a party which by all official records surpasses its political opponents in geometric progression in accumulating wealth through questionable bonds where the donor’s name remains hidden. The latest official figures state that more than Rs 10,000 crore has come to political parties by way of donations through the questionable Electoral Bonds (EBs) and only a small fraction of this has gone to other 22 parties legally entitled to it, with the lion’s share cornered by the BJP. The challenge to that Law is also before the Supreme Court. But that’s another matter.

But then Justice Khanwilkar has a very notable record in deciding cases in the six years that he served on the apex court. A month prior to that he headed the bench with Justices Dinesh Maheshwari and C.T.Ravikumar to pass strictures against social activist Teesta Setalvad, doing yeoman service to those whose voices do not reach the corridors of power; an unblemished retired police officer R.B. Sreekumar and a whistle blower police officer Sanjiv Bhat who has been framed on a cooked up long forgotten case by the BJP led Gujarat government in a vindictive act to punish him because he produced email exchanges to the investigating authorities to allege what transpired at the Gujarat Chief Minister’s meeting on February 28, when Ehsan Jafri and 68 others including women were killed by a lynch mob. And the court virtually directed the Gujarat BJP government to punish them with arrest and imprisonment.

In January 2021, Justice Khanwilkar and Justice Maheshwari passed in 2:1 verdict putting their seal of approval on Modi’ grand ambitious Central Vista project holding that there was no impropriety in the government going ahead with this huge project during the Covid 19, squandering public money on a non-essential construction. Justice Sanjiv Khanna however gave the dissenting judgement against the Government in this case. More startling, in March 2020, Justice Khanwilkar and Maheshwari bench had suo moto transferred the challenge to Central Vista from Delhi High Court to itself.

In April this year it upheld the government’s amendment to the Foreign Contribution Regulation (Amendment) Act, 2020, and thus facilitated the Government’s arbitrariness in deciding which non-government organisation (NGO) or social action body it would allow to receive foreign contributions, like many Sangh affiliates also working directly or indirectly for the BJP who have been receiving foreign contributions for several decades now and are continuing to do so. Ruling against a NGO petitioner Noel Harper Justice Khanwilkar wrote that “the possibility of national polity being influenced by foreign contribution is globally recognised” and that accepting foreign donations itself “is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs.” But what about allegations of Sangh parivar’s unhindered funding from the USA, Europe and other foreign sources? It lies now in the court of the BJP government to decide who to allow foreign funding and who won’t be permitted. Never mind what purpose the funds are being utilised for.

In 2019 judgement in “NIA vs Zahoor Ahmad Watali” a two-judge bench led by Justice Khanwilkar held that a trial court could deny bail if it “is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true” adding that the police version in the case diary must be considered as the “prima facie” view. This ruling has been cited since then by successive courts to deny bail to bright students in the East Delhi riots cases and highly respected intellectuals in the Bhima Koregaon case as well.

Eknath Shinde built two helipads in his remote village. Not a school, nor a hospital, not one but two helipads in that small hamlet. Would the ED dare probe Shinde’s finance?. The answer is No. There are allegations of extortion against former Mumbai Police Commissioner Param Bir Singh that his family namely wife and son are running private business. But ED won’t probe him. Instead it would make guilty officers like Sachin Vaze approvers to jail without trial for more thana year former Home Minister of Maharashtra Anil Deshmukh on he allegations of Pram Bir Singh’s allegations of extortion and corruption against Deshmukh. It arrested day after retirement Mumbai Police Commissioner Sanjay Pandey on the most flimsy charge because he was appointed by the outgoing MVA government of Uddhav Thackeray. And a Delhi court denies him bail ignoring evident political vendetta.

The latest target is Sanjay Raut the outspoken spokesman of the Shiv Sena, and a trusted lieutenant of its chief Uddhav Thackeray who led the charge against the BJP conspiracy in luring the Shiv Sena MLAs through threat and inducements and bringing down the MVA government led by Shiv Sena. Soon thereafter, in fact almost in the middle of this whole drama, the ED summoned Sanjay Raut in a case purportedly relating to some construction project of 2008 where the ED alleged misappropriation of funds by Raut’s associates. In between from 2014 to 2019 a BJP led government of Devendra Phadnavis was in office with Shiv Sena as a partner. Not a word of that so called scam was ever uttered by any BJP leader in Mumbai or Delhi. Doesn’t this smack of political vendetta?

Like wise the ED woke up to former NCP minister in Udhav Thackeray government Nawab Malik allegedly purchasing a piece of land in Kurla from a relative of underworld don now living in Pakistan Dawood Ibrahim’s sister Hasina Parker, A lady named Munira Plumber claimed earlier this year that this was her property and was sold off to Nawab Malik illegally. This deal took place 23 years ago and Plumber seems to wake up now when the ED wanted to fix Nawab Malik for exposing an extortion racket being run by the zonal in charge of the Narcotics Control Bureau (NCB) in Mumbai Sameer Wankhede in collusion with some BJP leaders spread across Madhya Pradesh and Gujarat to trap Aryan Khan the son of film star Shahrukh Khan on trumped charges of possessing contraband drug while boarding a cruise ship going for a party in Mumbai. He was jailed for close to a month and finally was found innocent. Nawab Malik had exposed that extortion racket.

The ED effect has started giving the requisite results to the BJP party. Eknath Shinde is not alone who ordinarily would have faced an ED probe. After all a person who used to ply auto rickshaw till the other day, how did he amass immense wealth, is something worth probing. Many of the Shiv Sena MLAs who betrayed Uddhav have the same background. Someone was a street corner vendor some a small shopkeeper. Their wealth was in the eyes of the BJP desperate at the loss of the cash rich Maharashtra state.

Next on BJP’s list seems to be Jharkhand, another rich state where the BJP enjoyed power for many long years till JMM leader Hemant Soren upset their applecart by making the right alliances in the 2019 state assembly elections to defeat the BJP. The way Bengal chief minister and Trinamul Congress supremo Mamata Banerjee first expressed her desire to support her party leader and Opposition Presidential candidate Yashwant Sinha and then appeared double minded and now reneged on supporting Opposition Vice presidential candidate Margaret Alva, one suspects the ED swoop on her minister Partha Chatterjee seems to have had a benumbing effect on Didi. Delhi Chief Minister Arvind Kejriwal appears to be sailing the same boat and acting in tandem with Didi on these elections. Again who knows Kejriwal has suddenly become wise to impending trouble from the ED after the arrest of one of his trusted and valuable minister Satyendra Jain.

The effect of judgements like the one delivered by Justice Khanwilkar bench of the highest court of the country have a cascading effect on lower judiciary including a High Court, calling whom a lower court would be a misnomer, since by its very name it’s a High Court. Nevertheless certain recent judgements like the Karnataka High Court upholding the Karnataka government’s order not allowing hijab/scarf wearing girls to appear for their graduation or high school, intermediate exams and immediately thereafter the Chief Justice of India refusing to hear the appeal ignoring their academic career at stake, only strengthened the resolve of judges who tended to uphold executive decision, refusing to look at the accompanied circumstances and the role of the executive.

Nothing can be more glaring than the continued incarceration for last two years of Kerala journalist Siddiq Kappan in a UP jail and the refusal of the courts to grant him bail. The latest was the rejection of his bail appeal by the Allahabad High Court. Kappan, a Malayalee, working for a Kerala journal from Delhi, not fully conversant with the local Hindi, travelling to Hathras along with others, mostly from his home state and a driver in a hired vehicle was going to do a cover story on the gangrape and murder of the Dalit girl for his journal. The UP police, busy from day one hushing up the case and denying the deceased Dalit girl’s testimony that she had been gangraped and strangulated by her village’s known upper caste men, was shooing off journalists when they wanted to reach the family to ascertain the truth while the police surreptitiously cremated he,r ignoring her family’s protests, perceived media exposes as inimical. More so if the concerned journalist happened to be a Muslim and a Keralite at that. So they arrested and sent Kappan and others with him in the car including the poor driver to jail, because even he happened to be a Muslim. What to expect from a chief minister who made life hell for a do gooder and life saver Dr Kafeel Khan because the media showed children dying of lack of oxygen and commended the young doctor for going out of his way to arrange oxygen cylinders to save some lives.

But what of courts and even the Allahabad High Court. On August 4, the Allahabad High Court dismissed Kappan’s bail plea stating, “Considering the facts and circumstances of the case…this court is not inclined to release the applicant on bail. The bail application is found devoid of merit,” said Justice Krishan Pahal in his August 2 order.

He further wrote, “It has come up in the investigation that the applicant had no work at Hathras. The state machinery was at tenterhooks (no consideration of the manner in which the UP administration was busy denying and hushing up that heinous crime of gangrape and murder and its’ deliberate attempt to suppress the news even after the same High Court had taken cognizance of this fact and issued notices to the UP government) owing to the tension prevailing due to various types of information being viral across all forums of media including the internet. (Did the presiding judge speak like a judge or the district administrator? Or perhaps the chief minister himself?). The said sojourn with co-accused persons who do not belong to media fraternity is crucial circumstance going against him (sic),” adding that “Use of tainted money cannot be ruled out,” when till the day of high court ruling the UP Police has not given any account of any money recovered from Kappan’s possession or in his account.

Kappan’s sole crime is he is a Muslim writing on Muslim issues and was now going to cover the horrific Hathras gangrape and murder of a Dalit girl. Arguably he had no business to meet her parents and write about this issue. And the Court swallowed this as prima facie substance to deny bail to this Kerala journalist two years after his arrest by the Yogi Adityanath government.

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